Robertson v Dept of Primary Industries and Fisheries & Anor [2010] QCA 147

The decision examines the power of seizure and forfeiture under the Animal Care and Protection Act 2001 (Qld) (‘the Act’).

His Honour Fraser JA delivered judgment with whom Chesterman JA and McMurdo P concurred:

[35] Section 152 applies where an Inspector has, under Ch 6, Pt 2, or under a warrant, seized an animal. Subsection 152(2) provides that the Inspector must, within 28 days after the seizure, return the animal to its owner unless one of six stated conditions are satisfied. Relevantly, the conditions include, “(b) the animal has been forfeited to the State under this part”. Section s 154 empowers the chief executive to decide to forfeit an animal where certain conditions are satisfied. Section 155 then obliges the chief executive promptly to give an information notice about such a decision to the person who owns the animal immediately before the forfeiture (the “former owner”). Sections 156 and 157 provide:

156 When transfer takes effect

(1) An animal or other thing becomes the State’s property if, under section 154(2), it is forfeited to the State.

(2) If, under section 142(3), the owner of an animal or other thing agrees in writing to transfer ownership of it to the State or a prescribed entity, it becomes the property of the State or entity when the Chief Executive or entity agrees in writing to the transfer.

157 How property may be dealt with

(1) This section applies if, under section 156 an animal or other thing becomes the property of the State or a prescribed entity.

(2) The State or entity may deal with the thing as it considers appropriate, including, for example, by destroying it or giving it away.

(3) However, the State or entity must not deal with the thing in a way that could prejudice the outcome of an appeal under this Act of which it is aware.

(4) Subsection (3) does not limit an inspector’s power under section 162 to destroy the animal.

(5) If the State or entity sells the thing, it may, after deducting the following, return the proceeds of the sale to the former owner of the thing—

(a) the costs of the sale;

(b) any costs it may recover from the person under section 189.

(6) The chief executive may deal with the thing for the State.

(7) This section is subject to a decision, direction or order under chapter 7, part 2 or 4 about the animal or other thing.”

[36] Subsection 157(7) requires reference to the provisions concerning reviews and appeals in Ch 7, Pt 4. Div 2 of Ch 7, Pt 4 sets out the powers of the Magistrates Court on appeal in ss 203 and 204. Section 203(1)(c) empowers the Magistrates Court, in deciding an appeal, to set aside the decision and return the matter to the chief executive “with directions the court considers appropriate”. Section 204 provides:

“(1) If the Magistrates Court confirms an internal review decision about forfeiture, it may also give directions about the sale or disposal of the animal or other thing.

(2) If the court sets aside an internal review decision about seizure or forfeiture, it may also—

(a) order the return of the animal or other thing; or

(b) make another order it considers appropriate for its disposal; or

(c) make an order under section 191.

(3) However, the court must not order the return to a person of any of the following seized things—

(a) an animal or other thing that may be evidence in a proceeding started in relation to the thing seized;

(b) a thing that has been destroyed because it has no intrinsic value;

(c) a thing that has been disposed of because it was perishable;

(d) a thing the person may not lawfully possess.”

[37] The dogs were forfeited to the State under s 154(2) so that by operation of s 156(1) those dogs became “the State’s property”. One effect of the dogs becoming the State’s property under s 156(1) was that, under s 157(2), the State was empowered to deal with the dogs as it considered appropriate, including by giving them away to the RSPCA. That provision was subject, however, to s 157(3): the State could not give away the dogs so as to prejudice the outcome of an appeal of which the State was aware. Moreover, the State’s power to give the dogs away under s 157(2) was qualified by the powers given to the Magistrates Court in ss 204(1) and (2).

[38] The status of the RSPCA as a “prescribed entity” was in that respect irrelevant. That is so because there was no evidence that Ms Robertson had agreed under s 142(3) to transfer ownership of the dogs to the RSPCA as a “prescribed entity”, in terms of s 156(2). Section 157(1) does not have the effect that s 157(2) and subsequent subsections of s 157 are to be construed as imposing rights and obligations upon a “prescribed entity” otherwise than one which has obtained the benefit of a transfer of ownership to it under s 156(2). Accordingly, s 157(7) rendered the power of the State to give the dogs to the RSPCA subject to the exercise by the Magistrates Court of its powers under s 204(1) (in the event that the Magistrates Court confirmed the forfeiture) and s 204(2) (in the event that the Court set aside the seizure or forfeiture).

[39] If, as the draft letters suggest, the State gave the dogs to the RSPCA, then that gift took effect subject to the power of the Magistrates Court to vindicate any decision on appeal in favour of Ms Robertson by ordering the return of the animals to her or by making orders for compensation under s 191 of the Act[9]. The Magistrate, having instead decided to confirm the forfeiture of the dogs to the State, invited submissions as to any necessary directions in relation to the sale or disposal of any of the dogs under s 204(1). Had the appeal been decided in Ms Robertson’s favour, the Magistrate would no doubt have sought submissions from her about the appropriate orders, whether as to the return or other dealing with the dogs or as to compensation. The State’s apparent transfers of the dogs to the RSPCA would not have stood in the way of such orders and did not in any way invalidate or render pointless Ms Robertson’s appeal. That appeal was the appropriate mode of challenging the forfeiture of the dogs, but Ms Robertson lost the appeal on the facts.

Conclusion

[40] The insurmountable difficulty for Ms Robertson in her proposed appeal is that the evidence accepted by the Magistrate amply justified the seizure and forfeiture of the dogs. Her proposed grounds of appeal to the District Court did not raise any matter of law which could arguably overcome that hurdle. This Court would not grant leave to appeal to facilitate a hopeless appeal or merely to permit a challenge to the primary judge’s interlocutory decision not to remove the RSPCA as a party in the District Court. The application for leave to appeal has no prospect of success. It is so clearly untenable that it should be struck out as an abuse of process.

I refer you to Bleats who facilitated the pro bono services provided in the hearing.

Brisbane Barrister – David Cormack

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